The Constitution - Reception of ambassadors

Presidential reception of ambassadors and other public ministers,
understood by the Framers as a clerklike duty, a mere administrative
function, was transformed by presidents in the twentieth century as a
wellspring of discretionary authority to determine which nations the
United States would have relations with and what the tone and temper of
those relations would be.

The reception of an ambassador entails consequences under international
law, chiefly the recognition of foreign governments and states. The
Framers, operating against the backdrop of international law principles
that held that the sovereign nations have a duty to receive ambassadors
from other sovereign nations, determined, as Hamilton explained in
Federalist
No. 69, to impose this duty on the president as a matter of
"convenience." Hamilton said that the authority "to
receive ambassadors and other public ministers … is more a matter
of dignity than authority. It is a circumstance which will be without
consequence in the administration of government; and it was far more
convenient that is should be arranged in this manner, than that there
should be a necessity of convening the legislature, or one of its
branches, upon every arrival of a foreign minister, though it were merely
to take the place of a departed predecessor." Given
Hamilton's explanation, there was no reason to view the
"reception clause" as a source of discretionary policymaking
authority for the president. In fact, Article 2, Section 3 of the
Constitution emphatically declares, "He shall, [not
'may'] receive Ambassadors and other public
Ministers," an injunction that stands in sharp contrast with the
discretionary constitutional powers that the president may choose to
exercise, such as the decision to "convene both Houses" of
Congress. Thus, the Framers, as James Madison wrote in 1793, gave the
president no prerogative whatever to reject foreign ministers. Madison
explained that "when a foreign minister presents himself, two
questions immediately arise: Are his credentials from the existing and
acting government of his country? Are they properly authenticated?"
Those questions, Madison noted, "are merely questions of
fact," and if answered affirmatively, the president was duty bound
to receive the minister.

The Framers' emphasis on the mechanical nature of the reception
function, reflected their acceptance of the doctrine of de facto
recognition, which requires diplomatic relations with the government that
actually exercises controlling power, as opposed to the principle of de
jure recognition, which counsels a determination of the legitimacy or
legality of a governing regime. In a letter written on 30 December 1792 to
Charles Cotesworth Pinckney, the U.S. minister to London, for the purpose
of clarifying U.S. policy toward the revolutionary French government,
Secretary of State Thomas Jefferson explained the rationale behind the
American doctrine of de facto recognition: "We certainly cannot
deny to other nations that principle whereon our own government is
founded, that every nation has a right to govern itself internally under
what forms it pleases and to change those forms at its own will."

The transformation of a humble administrative duty into a broad
discretionary power to conduct foreign policy began under Woodrow Wilson.
From 1913 to 1921 President Wilson, adhering to a theory of democratic
legitimacy with respect to Latin American countries, refused to grant
recognition to governments in that region that had come to power through
revolution or violence when lawful constitutional means of achieving
change existed. Then in 1920, Wilson, through Secretary of State
Bainbridge Colby, declared that the United States would not recognize the
Soviet Union, on the ground that the USSR was dedicated to the
revolutionary overthrow of other governments in the state system. During
the next thirteen years successive presidents adhered to Wilson's
unilateral decision to refuse recognition of the Soviet Union, a policy
that went largely unchallenged by an isolationist Congress. Ironically,
this process of turning the Framers' reception function into a
broad-based presidential foreign policy tool reached its full development
when, in 1933, President Franklin D. Roosevelt decided to reverse the
policy and recognize the Soviet Union, under the same constitutional
authority that Wilson had abused to refuse recognition. Roosevelt's
act of recognition then broadened into a unilateral agreement called the
"Litvinov Assignment"—an agreement on property claims
between the two nations. In
United States
v.
Belmont
(1937), Justice Sutherland upheld the validity of the agreement and said
the pact derived its force from both the president's status as the
sole organ of American foreign policy and his power to recognize foreign
governments. Justice Sutherland stated that Senate consultation was not
required. The Court again considered the validity of the Litvinov
Assignment five years later in
United States
v.
Pink
(1942). Once more, the Court upheld the agreement, and enthusiastically
embraced the "sole organ" doctrine and a capacious view of
executive power. These decisions represented an exercise in judicial
activism, and inflated the reception function into a towering structure of
executive power. Thus in later years President Harry S. Truman felt
authorized in his decision not to recognize the People's Republic
of China as well as several of the communist satellite states of Eastern
Europe. Under changing circumstances in later years, President Richard M.
Nixon felt similarly authorized to reverse that policy in 1972 to extend
what amounted to diplomatic recognition to the People's Republic of
China, an effort that was completed in 1978 when President Jimmy Carter
fully "normalized" relations with China through a unilateral
decision to recognize the regime of Beijing and derecognize the competing
government in Taiwan.

For many observers the extraordinary power exercised by the executive in
the conduct of foreign policy is a principal element in
Schlesinger's "imperial" presidency, and it
constitutes a major threat to the democratic foundations of the American
constitutional system. Yet the practice of executive usurpation,
revelations of the activities of the Central Intelligence Agency abroad,
the constitutional corruption inherent in the Iran-Contra affair, and the
dangers posed by a pattern of unilateral presidential warmaking from Korea
to Vietnam to Bosnia, have not moved Congress and the public to implement
meaningful constitutional and political checks to halt presidential
aggrandizement of power. Occasionally, individual members or even large
blocs of members of Congress will challenge a unilateral presidential
action. On 28 April 1999 the House of Representatives, by a tie vote,
rejected a motion to authorize President Bill Clinton to conduct air and
missile strikes against the former Yugoslavia. Clinton ignored the House
vote and waged war on his own claim of authority. But the relatively
infrequent and isolated criticisms that emerge from Capitol Hill have not
risen to the level of an institutional challenge, in which Congress
summons the will to defend its constitutional powers in foreign affairs.
While defenders of the constitutional design for foreign policy might hope
for a resurgent Congress, and even dare to dream of an ascendant Congress,
there seems to be little political incentive for members to act because
international issues rarely assume a significant role in election
campaigns. There remains the possibility that some international issues,
among them trade matters and environmental concerns, may assume greater
importance among voters, which would transform those issues into
constituent demands and thus stir Congress to assert its broad powers.
However, George W. Bush declared early in his first term that he would
halt U.S. participation in the Kyoto Accords, a worldwide effort to
control global warming; announced that he would use military force to
defend Taiwan against mainland China; and stated his intention to
terminate the Antiballistic Missile Treaty of 1972, all unilateral
executive actions that constitute a rank usurpation of congressional
powers. Yet those declarations brought forth few protests from Congress in
defense of its constitutional frontiers and provinces. Indeed, at
century's turn, congressional acquiescence in the face of executive
aggrandizement seemed as fully entrenched in the practice of American
foreign policy as it did when the imperial presidency first took flight.

For others, however, the vast discretionary power exercised by the
president is the price the nation pays to safeguard its national security
interests abroad and its freedom at home. Executive domination of foreign
policy, it has been asserted, is a reflection of the overweening realities
of the international realm, which cannot be adequately addressed by a
Constitution that is no longer relevant to international politics.
Congressional primacy has become obsolete. There remains a debate, one
initiated in the Constitutional Convention two centuries ago, on the
question of whether unilateral executive control of foreign policy or
legislatively inspired collective decision making is more suitable in a
nation grounded on republican principles. It may well be the case that the
values underlying the war clause and the other constitutional provisions
that govern the conduct of American foreign policy are as compelling today
as they were two hundred years ago.